U.S. v. Johnson
| Decision Date | 08 March 2005 |
| Docket Number | No. 03-4849.,No. 03-4677.,03-4677.,03-4849. |
| Citation | 400 F.3d 187 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Gregory JOHNSON, a/k/a Little Greg, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Gregory Johnson, a/k/a Little Greg, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fourth Circuit |
ARGUED: Timothy Joseph Sullivan, Sullivan & Sullivan, College Park, Maryland, for Appellant. Deborah A. Johnston, Assistant United States Attorney, Office of the United States Attorney, Greenbelt, Maryland, for Appellee. ON BRIEF: Thomas M. DiBiagio, United States Attorney, Baltimore, Maryland, for Appellee.
Before WIDENER and MOTZ, Circuit Judges, and Glen E. CONRAD, United States District Judge for the Western District of Virginia, sitting by designation.
Affirmed in part, vacated in part, and remanded by published opinion. Judge MOTZ wrote the opinion, in which Judge WIDENER and Judge CONRAD joined.
After a jury convicted Gregory Anthony Johnson of kidnaping, twice using a firearm in the commission of a crime of violence, and attempting to kill a potential witness, the district court sentenced him to imprisonment and ordered him to pay restitution to the victim and to Family & Child Services, a mental health agency that provided counseling to the victim at a reduced rate. Johnson appeals, arguing the district court erred in denying his motion to suppress statements he made to the police after he had invoked his Fifth Amendment right to counsel. He also challenges the validity of the restitution order, faulting the Government for missing a statutory deadline and arguing that third parties, like Family & Child Services, are not eligible for restitution under the Mandatory Victims Restitution Act, 18 U.S.C. § 3663A (2000). Further, after the Supreme Court decided Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), Johnson filed a supplemental brief challenging the constitutionality of his sentence, which was based on facts not found by the jury. We find no reversible error with the suppression or restitution orders, but we vacate his sentence and remand for resentencing in accord with United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, ___ L.Ed.2d ___ (2005).
The Government introduced evidence at trial that in the early morning of February 8, 2002, Johnson, Michael Watkins, and Alexander Martin attempted to rob Anthony Raymond, Akil Asson, and Ihsan Muhammad. Watkins died before Johnson's trial, but Martin cooperated with the Government and pled guilty to kidnaping and using a firearm during the kidnaping. At Johnson's trial, Martin, Ms. Muhammad, and Sesame Sorrells, an eyewitness who knew Johnson prior to the crimes, provided detailed testimony as to Johnson's role in the crimes.
As the victims walked through a parking lot from a 7-Eleven to a nearby apartment complex in Chillum, Maryland, the assailants, displaying guns, ordered them to lie on the ground and searched the men's pockets and Ms. Muhammad's purse. One of the assailants kicked Mr. Raymond in the face and shot at him, although the bullet did not hit him. As the assailants were leaving, one of them said, "I think we ought to take this one with us," referring to Ms. Muhammad. The man pushed her into a waiting white car driven by a fourth man, seating her between himself and another man, while the third assailant sat in the front passenger seat. The men drove Ms. Muhammad to Washington, D.C., en route threatening to kill her, trying to sexually assault her, and slapping and punching her to stop her from praying out loud.
Ms. Muhammad escaped from the moving vehicle and ran a few feet but fell to the ground because the men had pulled her pants down to her ankles as she had tried to climb over one of them to get out of the car. The car stopped, and as Ms. Muhammad lay on the ground, Johnson approached her and repeatedly stuck his fingers in her vagina. Before the car drove off, Johnson shot Ms. Muhammad three times. She sustained serious injuries. When Martin asked Johnson why he shot Ms. Muhammad, Johnson indicated that he did so because she had heard his name.
The jury convicted Johnson of kidnaping, in violation of 18 U.S.C. § 1201(a)(1) (2000), two counts of use of a firearm in the commission of a crime of violence, in violation of 18 U.S.C. § 924(c)(2000), and one count of attempting to kill a potential witness, in violation of 18 U.S.C. § 1512(a)(1)(c)(2000).1 Applying the United States Sentencing Guidelines, the district court sentenced him to 789 months imprisonment to be followed by a five year period of supervised release. The court subsequently ordered Johnson to pay $495 to Ms. Muhammad and $5,240 to Family & Child Services.
On appeal, Johnson challenges the denial of his motion to suppress, the restitution order, and his sentence. We consider each contention in turn.
Johnson alleges that the district court committed reversible error by failing to suppress two written statements he gave to Prince George's County Police officers and an FBI agent.
Upon learning on February 28, 2002, that a warrant for his arrest had been issued, Johnson turned himself in to the Prince George's County Police Department. The police promptly arrested Johnson and placed him in an interview room, where they put a stationary handcuff on him. After asking him for biographical information, Detective Sherry Prince, accompanied by FBI Agent Jansen Jordan, gave Johnson the Prince George's County standard advice of rights and waiver form.
Detective Prince then read aloud the form, which states:
I am now going to read to you your rights under the law. If you do not understand something that I say to you, please stop me, and I will explain it to you.
1. You have the right to remain silent. If you choose to give up this right, anything that you say can be used against you in court.
2. You have the right to talk to a lawyer before you are asked any questions and to have a lawyer with you while you are being questioned.
3. If you want a lawyer, but cannot afford one, a lawyer will be provided to you at no cost.
4. If you want to answer questions now without a lawyer, you still have the right to stop answering questions at any time.
Detective Prince handed Johnson a pen so that he could check "yes" or "no" to the four questions on the form and initial his answers. The four questions are:
Do you understand these rights?
Do you want to make a statement at this time without a lawyer?
Have you been promised anything, have you been offered any kind of reward or benefit, or have you been threatened in any way in order to get you to make a statement?
Are you under the influence of drugs or alcohol at this time?
At 12:10 p.m. Johnson initialed and checked "yes" to the first question, but initialed and checked "no" to the other three questions, and signed the form; he did not respond orally to the questions. Understanding Johnson's written answers as an invocation of his rights, Detective Prince and Agent Jordan did not ask him any further questions. They took a few photographs of Johnson and left the interview room.
When Detective Prince returned to her desk, Detective Reginald Fenner asked whether Johnson had waived his rights. Detective Prince showed Detective Fenner the waiver form, and told him that Johnson had "checked no" on the form. Detective Fenner asked Detective Prince if Johnson had "waive[d]" his right to counsel, and Detective Prince replied "no." Detective Fenner then asked if Johnson had asked for an attorney, and Detective Prince said he had not. Detective Fenner told Detective Prince that he would explain the form to Johnson and entered the interview room at approximately 12:50 p.m., which was forty minutes after Johnson had checked "no," initialed, and signed the waiver form.
Detective Fenner spoke with Johnson alone in the interview room for an hour. By his own account, Detective Fenner gave Johnson a "one-way lecture" describing police investigative tactics. But Detective Fenner did not limit his lecture to generalities. At the suppression hearing, Detective Fenner testified that he told Johnson:
that he was here for a reason. Either somebody identified him or there was some evidence that apparently put him, his individual person here, and I explained to him that could be for any, any reasons. It could be for innocent reasons.
Maybe he was walking by. Maybe somebody knew him and saw him in the area. Maybe somebody has something against him and they are lying. That if he could tell me, you know, anything that would prove that he wasn't involved or he was somewhere else, for example, like work or out of town, something I could verify, then that would help his situation.
But I was honest with him. I explained to him that, you know, if he wants to tell me I was there, he was there and he did it, then I'm also, you know, willing to take that. I always give both sides of the scenario.
After the hour-long lecture, Detective Fenner took Johnson to the bathroom and when Johnson returned to the interview room, Detective Fenner gave him a cigarette and a cup of water and left him uncuffed. Detective Fenner then gave Johnson a fresh copy of the waiver form, reading through each of the rights and asking Johnson to answer the four questions. At 2:15 p.m., a little more than two hours after declining to waive his rights on the first waiver form, Johnson checked "yes" next to the question "Do you want to make a statement at this time without a lawyer?"
Over the next several hours, Johnson gave two written statements to Detective Prince and Agent Jordan. In the statements, Johnson said that he had been drinking beer and smoking weed with his friend Turk (Alexander Martin) and a guy named T, who drove a white car. Johnson told them that he needed some money, so they drove up to two men and a...
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